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10 reducing noise outside the DNL 65. In contrast, funding has allow Broward County to follow neighborhood bound- been allocated to the FAA's Center of Excellence to develop aries to mitigate for noise impact. This block-rounding procedures such as the CDA procedure, which primarily will double the number of homes eligible for insula- reduces noise in the DNL 4560 contours for most airports. tion or purchase assurance from just over 1,000 to more than 2,000 ("ATA Says Block-Rounding at Bob Hope, The FAA has been looking beyond DNL 65 in an attempt Ft. Lauderdale Int'l Has Gone Too Far" 2008). to determine what will be necessary for airports to accom- modate the anticipated growth in air travel demand and to produce the next generation air traffic system. The FAA has COURT CASES ADDRESSING NOISE OUTSIDE DNL 65 indicated that a change to address noise outside DNL 65 will be essential to meet both the capacity goals of the Next Gen- A number of airport environmental cases have challenged eration Air Transportation System and furthering the devel- noise analyses conducted for studies performed under the opment of additional noise stringencies in the international NEPA. In most of these cases, the petitioners have argued arena. FAA recently articulated its NextGen targets as follows that the noise analysis was insufficient; however, in all cases, (FAA 2008): the courts have deferred to FAA's methodology. These cases include: Maintain current target of 4% annual reduction in num- ber of people exposed to DNL 65 or more near-term Suburban O'Hare Commission v. Dole: In this case, the (compared with 2000 to 2002), and achieve commen- Suburban O'Hare Commission asked the court to rule surate or greater reduction of the number of people on the adequacy of the EIS prepared for O'Hare Inter- exposed to DNL 5565. national Airport and, in particular, the methodology Achieve greater reductions mid- and long-term, first used to develop noise contours. The parties agreed on bringing DNL 65 primarily within airport boundary, the use of DNL 65 as an impact criterion. and later DNL 55 primarily within airport boundary. Citizens Against Burlington v. Busey: In this case, the petitioners alleged insufficient analysis of noise impacts, and that the noise analysis should include noise outside CAPACITY ENHANCEMENT COMMITMENTS ADDRESSING NOISE OUTSIDE DNL 65 DNL 65 dB (specifically, sleep disturbance). The court found the FAA's DNL 65 analysis sufficient. In recent years, airports have made commitments in support Communities INC v. Busey: In this case, the petitioners of airport capacity projects that include mitigation of noise argued that the EIS noise analysis should have addressed beyond DNL 65. Several examples follow. noise outside DNL, especially as related to historic prop- erties. The court deferred to the FAA's use of DNL 65 The FAA's 1998 Record of Decision on the Environ- as the sole impact criterion. mental Impact Statement for the MinneapolisSt. Paul Seattle Community Council Federation v. FAA: In this International Airport (MSP), Dual Track Airport Plan- case, petitioners asked the court to consider whether it ning Process: New Runway 17/35 and Airport Layout was reasonable for the FAA to rely on DNL 65 as the Plan Approval included a noise mitigation plan that threshold of noise impact for proposed airspace changes. called for sound insulation to DNL 60. The noise miti- The court deferred to FAA's discretion in the identifi- gation plan was developed by a Noise Mitigation Com- cation of DNL 65 as the threshold of impact. mittee consisting of mayors of cities surrounding MSP, Morongo Band of Mission Indians v. FAA: In this case, Northwest Airlines, Metropolitan Council, and the Met- the tribe challenged FAA's use of "urban" noise crite- ropolitan Airports Commission (MAC) (FAA 1998). ria (DNL 65) to evaluate noise levels on the reserva- The Los Angeles World Airports (LAWA) worked in tion. Again, the court deferred to FAA's discretion for partnership with the Los Angeles International Airport developing methodology. (LAX) Coalition for Economic, Environmental, and City of Bridgeton v. Slater: Challenge to noise method- Educational Justice (LAX Coalition) to develop a pro- ology used. "The court also held that the FAA has dis- gram to ensure that communities affected by the LAX cretion to adopt the noise methodology it deems appro- Master Plan Program also receive benefits as a result of priate without judicial second guessing." the implementation of the Program. The Community Benefits Agreement details the various proposals of mit- In recent years, courts have determined that airports must igation and benefit, including increased funding for the address noise impacts beyond the current DNL 65 land use aircraft noise mitigation program, end-of-block sound compatibility guidelines. Three examples of such decisions insulation, suspension of avigation easements for noise, follow. and a FAR Part 161 Study for limitations on nighttime departures (Los Angeles World Airports 2008). In January 2007, the District Court for Hennepin County, At Ft. Lauderdale, the FAA agreed in its Final Environ- Minnesota, granted summary judgment in favor of mental Impact Statement (EIS) on a runway extension to the city of Minneapolis and other plaintiffs in litigation

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11 against the MAC (City of Minneapolis et al. v. Metro- not bind local governments and that the Airport Author- politan Airports Commission 2007). The court found that ity properly relied on the threshold established by the MAC had failed to comply with its state law obligation local governments with land use jurisdiction. to provide noise insulation in the DNL 6065 dB contour In Berkeley the Keep Jets Over the Bay Committee v. around the MSP as promised in the EIS for the construc- Board of Port Commissioners of the City of Oakland, tion of the new Runway 17/35 and other documents. the court found that the noise analysis in the city of In June 2005, the U.S. Court of Appeals in Washington, Oakland's Environmental Impact Report (EIR) was D.C., ruled that a Stage 2 restriction at the Naples insufficient because it did not "address adequately the Municipal Airport was reasonable and the FAA erred in potential disturbance to area residents resulting from terminating the city of Naples Airport Authority's eli- increased nighttime air cargo operations, specifically, gibility for AIP grants (City of Naples Airport Auth. v. by omitting significant information about the airport's FAA). Importantly for purposes of this discussion, the potential interference with sleep, including physiologi- court found that the Stage 2 restriction was reasonable. cal response and annoyance from increased nighttime In particular, the court found that it was permissible for overflights. The flaw in the EIR's noise analysis was its the Airport Authority to consider the benefits of the failure to provide, in addition to a community noise restriction to individuals exposed to noise above DNL equivalent level (CNEL) (a community noise measure) 60 dB. The court concluded, "The Airport Authority analysis, the most fundamental information about the and the City of Naples introduced ample evidence-- project's noise impacts, which specifically included the much of which went unrebutted--demonstrating that number of additional nighttime flights that would occur the Stage 2 ban was justified." The court further clari- under the project, the frequency of those flights, and fied that the FAA's land use compatibility guidelines do their effect on sleep."